What’s the biggest news story about the Supreme Court and environmental law? Justice Scalia’s passing and the hot list of potential replacements? The Court’s unprecedented stay of President Obama’s Clean Power Plan? Or the grant of leave to hear Mississippi v. Tennessee, the first ever interstate groundwater case? If you picked the last one, you’re reading the right blog post.
Admittedly it’s not the hot news item for environmental lawyers and Supreme Court spectators. But the Court has granted the State of Mississippi leave to file a bill of complaint against the State of Tennessee, the City of Memphis, and Memphis Light, Gas & Water Division for wrongfully converting groundwater from the interstate Sparta-Memphis Aquifer. The dispute arises from Memphis and its municipal utility pumping groundwater within Tennessee, which Mississippi alleges has lowered the water tables within its territory.
The Supreme Court’s grant of leave raises for the first time the question of what legal doctrine applies to transboundary interstate groundwater resources. Tennessee/Memphis (supported the U.S. Solicitor General) and lower courts would subject interstate groundwater to the Court’s equitable apportionment doctrine, which divides and allocates interstate surface waters by determining the best overall utility for the water supply with a heavy emphasis on protecting existing consumptive uses. Mississippi’s bill of complaint seeks damages and declaratory relief based on property theories of absolute right, title, and exclusive possessory ownership of groundwater located within its territorial borders.
An article I’ve authored with my former student Joe Regalia, Interstate Groundwater Law Revisited: Mississippi v. Tennessee, 34 Virginia Environmental Law Journal 152 (2016), offers a third alternative. We suggest the Supreme Court’s doctrine of interstate nuisance, which recognizes and balances competing sovereign interests in utilization and preservation of shared interstate natural resources. While Mississippi would draw an artificial line through a flowing transboundary aquifer, and Tennessee would divide and take its share of that aquifer, we offer an approach that considers both states’ interests and leaves room to conserve the resource for future generations.
Update: The Supreme Court has appointed a Special Master, the Honorable Eugene E. Siler, Jr., who served on the Sixth Circuit Court of Appeals and was formerly a district court judge in Kentucky. He has scheduled briefing and an evidentiary hearing January 2019 “on the limited issue of whether the Aquifer and the water constitutes an interstate resource.” The parties are filing dispositive motions this summer - stay tuned for future developments. All pleadings are available on the special master’s docket sheet.